Crime, Punishment and Voting Rights

Former convicted bank robber Shon Hopwood is now a Georgetown law professor. Should he and other felons be allowed to vote?

Five Figures to Consider

6.1 million U.S. citizens are unable to vote due to a felony conviction
¾ of those disenfranchised due to a felony conviction are no longer in prison
3 states (Florida, Iowa and Kentucky) have lifetime voting bans on felons
1 in 5 African American adults is disenfranchised in Florida, Kentucky, Tennessee and Virginia
2 states (Maine and Vermont) allow persons in prison to vote

Shon Hopwood is not your run-of-the-mill ex-con. The former Nebraska bank robber and college dropout is now an associate law professor at Georgetown University specializing in criminal law and the constitutional rights of prisoners. He left prison a reformed man, yet in many states, including Virginia, just across the Potomac River from Georgetown, Hopwood would not be allowed to vote. In 12 U.S. states, felons do not earn back their voting rights upon completion of their sentences. Waiting periods, time-consuming application processes and ineligibility associated with particular crimes, including Hopwood’s armed robberies, prevent millions of Americans from voting even after they have served their time. An estimated 6.1 million U.S. citizens are unable to vote due to felony convictions, which can range from marijuana possession to manslaughter. Three-quarters of the disenfranchised are no longer in prison. In six states – Alabama, Florida, Kentucky, Mississippi, Tennessee and Virginia – more than 7% of the adult population is disenfranchised. This penalty falls heavily upon African Americans. In Florida, Kentucky, Tennessee and Virginia, one in five African American adults is ineligible to vote due to a felony conviction.

Desmond Meade, a formerly homeless convicted drug felon and graduate of Florida International University Law School, is one of 1.5 million felons in Florida who have completed their sentences but are denied the vote. The state, which has the largest number of disenfranchised citizens in the country, requires released felons to wait five to seven years before applying to the governor’s office for reinstatement.  Only a few hundred out of tens of thousands of applicants are approved each year. (Iowa and Kentucky have similar lifetime bans.) But that could soon change. Meade is chair of Floridians for a Fair Democracy, which collected more than 766,200 signatures for a ballot initiative that would restore voting rights to Floridians with felony convictions who have served their time. (Those convicted of murder or sexual assault would not be eligible.) These citizens have paid the price for their crimes, and Meade’s group believes they deserve the vote. The Voting Restoration Amendment will be on the Florida ballot this November. A recent Quinnipiac University poll indicated that 67% of Florida voters would support the bill. Governor Rick Scott is unlikely to be one of them. Scott, a Republican, is running for the Senate this fall and has been fighting a lawsuit in an attempt to protect the governor’s discretion over whose rights are reinstated. After losing in a lower court, Scott won an appeal this April, the day before a mandated deadline for his administration to submit a new plan for restoring felony voting rights.

Constitutionally, states have the power to grant or restrict voting rights, as long as they can demonstrate a valid state interest and don’t discriminate by race or gender. Over the past decade, the trend has been toward rights restoration for those convicted of felonies. An estimated, 840,000 citizens regained the right to vote from 1997 to 2016, often in hard-fought contests. In 2007 Maryland ended its lifetime voting ban on convicted felons, then passed a bill in 2015 to grant the vote to felons on parole or probation. Republican Governor Larry Hogan vetoed the bill, but the Assembly overrode the veto with some bipartisan support. The two measures restored the vote to an estimated 90,000 Maryland residents. This month New York Governor Andrew Cuomo used his clemency power to restore voting rights to 35,000 former prisoners on parole and intends to continue the practice monthly. But actions taken by a governor – as opposed to those enacted through legislation – can have a fleeting impact. Governors in Iowa and Kentucky rescinded their predecessors’ executive orders extending voting rights.

“What compelling public interest is served by felony disenfranchisement?” asked conservative columnist George Will in a recent Washington Post column in support of the Florida ballot initiative. An editorial in The National Review in response to Will argued that ex-convicts are likely to reoffend, therefore waiting periods like Florida’s are important for felons to prove they have “turned over a new leaf.”  Maine and Vermont disagree. Both states maintain the voting rights of felons without restriction – even in prison. Meanwhile, other states try to thread the needle. Alabama passed a law this year clarifying the crimes of “moral turpitude” that, according to the state constitution, disenfranchise voters for life. Alabama’s list includes murder, terrorism, kidnapping, rape, drug trafficking, bigamy, sodomy and incest. Felony DUIs, domestic violence and indecent exposure, however, are excluded. The clarification is meant to make it easier for some citizens convicted of felonies to reclaim their voting rights.

Should ex-prisoners be compelled to prove their worthiness in the community in order to vote? Or does the extension of the privilege of voting make ex-prisoners better community members? The jury is out. There is suggestive data, however, from Florida. Since 2011, the state has been tracking the recidivism rate among felons who applied for and were awarded the right to vote. Among the 1,952 felons whose voting rights were reinstated between 2011 and 2015, there was a 0.4% recidivism rate, a tiny fraction of the 30% recidivism rate in the state. This was a self-selecting group, however, consisting of those who, after the required waiting period, submitted an application with supporting documentation to the state’s Office of Executive Clemency, then were among the 20,000 applicants whose request was granted.

As the population of released felons has climbed over the decades, the issue of felony voting rights has gained urgency. It is currently estimated that 8% of the U.S. population and 33% of the African American male population have felony convictions. That is a significant number.  If all disenfranchised felons voted, there would be a 4.4% increase in votes cast. Many assume that those votes, which would be heavily minority, would lean Democratic, and be a threat to Republicans in purple states that have formerly denied felons the vote, namely Florida. And that may be why Rick Scott is fighting.

FIVE FIGURE THINKING
Felony disenfranchisement is a gratuitous punishment. It has not been shown to deter crime. On the other hand, restoring the votes of felons who have served their time may contribute to their productive reentry into the community. States should work to end felony disenfranchisement.

Sources

ACLU, Brennan Center, Congress.gov, Fair Elections Legal Network, Federal Election Commission, Florida Rights Restoration Coalition, The Heritage Foundation, League of Women Voters of Kentucky, National Conference of State Legislatures, Prison Policy Initiative, The Sentencing Project, The Southern Poverty Law Center, University of Georgia